1 I, Celso Rodriguez Padrón, General

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I, CELSO RODRIGUEZ PADRÓN, GENERAL SECRETARY OF THE GENERAL COUNCIL OF THE JUDICIARY,

CERTIFY: THAT AT TODAY’S MEETING OF THE GENERAL COUNCIL OF THE JUDICIARY, THE REPORT ON THE DECREE PROJECT OF REORGANIZATION OF THE JOINT COMMISSION OF THE GOVERNMENT OF CANTABRIA AND THE JUDICIAL SECRETARIAT POSTED IN THE AUTONOMOUS COMMUNITY OF CANTABRIA WAS APPROVED, BEING WORDED AS FOLLOWS:

BACKGROUND

On the 17 th of March, 2009, the Decree Project of Reorganization of the Joint Commission of the Cantabrian Government and the Judicial Secretariat posted in the Autonomous Community of Cantabria, was entered in the Registry of the General Council of the Judiciary, submitted by the General Secretary of Presidency and Justice of the Government of Cantabria, for the purpose of issuing the mandatory report.

The Surveys and Reports Commission appointed the Right Honourable Mr. José Manuel Gómez Benítez as deponent, and approved the present report on the 16 th of April, 2009, and ordered it to be forwarded to the plenary Session of this Constitutional Organ.

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GENERAL CONSIDERATIONS ABOUT THE CONSULTATIVE FUNCTION OF THE GENERAL COUNCIL OF THE JUDICIARY

The consultative function of the General Council of the Judiciary is referred to in article 108.1 of the Organic Law of the Judiciary; specifically, section d) refers to the faculty of reporting on the draft laws and general regulations of the State and of the Autonomous Communities which affect wholly or in part “d) The Organic Statute of the Secretaries and the rest of the staff of the Justice Administration.”

In the light of this legal provision, in interpretation of the scope and sense of the legal authority to report in which the General Council of the Judiciary is acknowledged, the opinion that this constitutional organ must issue about the submitted Decree Project should be limited to the substantive and procedural rules specifically indicated therein, avoiding any consideration of matters outside the judiciary or the exercise of the jurisdictional function with which it is entrusted .

As well as the aforementioned, and in accordance with the principle of collaboration between the constitutional organs, the General Council of the Judiciary has been indicating the way to make other related considerations effective in its reports, especially in matters of legislative technique, or of a terminological nature, with the aim of improving the accuracy of the texts of the regulations, and therefore, the subsequent effective applicability, in such case, in legal proceedings, inasmuch as it is the Courts which, in the final analysis, will have to apply the rules submitted to report to this Council, once they have been approved by the competent authority.

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III

STRUCTURE AND CONTENT OF THE PROJECT

The Decree Project submitted to report consists of a Preamble or Explanation of Reasons, and a brief articulated body, constituted around five precepts, an abolishment provision and a final provision.

In the Explanation of Reasons are expressed the purpose and reasons that led the autonomous Executive to undertake the reform of the Joint Commission of the Government of Cantabria and the Judicial Secretariat posted in this Autonomous Community, a little more than a year after the creation of this organ, namely, “the possibility of improving the running of the organ as well as the possibility of enriching its functioning with the presence of other members related with specific sectors worthy of a very special protection as considered by the Government of Cantabria, as are women who are victims of violence against women.”

In fact, the principal modifications which the Project introduces with respect to the previous regulation, in force up to now, refer to the specific presence of representatives of organs with express competence and with particular reference to the area of women, as is the case of the General Council for Women, as well as explicit attention to the functional scope of this Joint Commission in the matter of the protection of the victims of gender violence.

As its most immediate forerunner, Decree 17/2008, of the 28 th of February, by which the Joint Commission of the Government of Cantabria and the Judicial Secretariat posted in that Autonomous

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Community was created, the Project under report is a disengaged text, the precepts of which are successively dedicated to:

i) The determination of the object of the regulation (article 1), which literally reproduces the text of art. 1 of the current Decree 17/2008, previously mentioned, establishing the creation of the Joint Commission of the Government of Cantabria and Judicial Secretaries of Cantabria, as a consultative organ attached to the Council of Presidency and Justice of the Cantabrian Government.

ii) The functions which the Project attributes to this organ (art. 2) are, as in its predecessor, fundamentally of an informative and advisory nature, in logical consonance with its character of a consultative organ. In this area, the most significant reform – in fact, the only one that the project introduces in the material scope of competence of the valued Joint Commission – refers to the attention given to matters related to violence against women and the attention given to the victims of this violence.

iii) As for its composition (art. 3), this Commission is made up of – as it could not be any other way – a representative of the Government of Cantabria, whoever holds the position of chairman of the Council of Presidency and Justice who shall act as Chairman, whoever occupies a similar position in the General Council of Justice, in the General Council for Women –

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innovation with respect to the current Decree – and of whoever occupies the position of Premiership of Personnel Service and social assistance of the mentioned General Council of Justice, who shall act as the Secretary of the organ, and by a representative of the Judicial Secretaries posted in Cantabria, who will be committed to the person who holds the position of Secretary of the Board of Governors of the High Court of Justice of Cantabria, and two Judicial Secretaries posted in the Autonomous Community of Cantabria and chosen by the aforementioned person.

iv) A new paragraph is introduced into this article 3, which reforms the old art. 4.3, in the sense of envisaging that the designated members may delegate their assistance at each specific meeting to such person as they deem appropriate, who, in all cases, as far as referring to the members of the Cantabrian Government, may not hold an inferior rank to that of the Head of a Service or similar and without the Judicial Secretaries being able to delegate anyone who does not hold such a position.

v) The rules of running envisaged for the Commission (art. 4), establish a biannual mandate for elected members, the calling of ordinary and extraordinary meetings, the possibility of the Chairman convening, depending on the matters to be dealt with, technical personnel or officers of the Government of the Autonomous Community, and in equal circumstances, other Secretaries or Judicial Secretaries, by the Secretary of the Governing Body,

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the creation of work groups for drawing up reports or proposals relating to specific matters, with special reference to the matter of the protection of the victims of violence against women (explicit reference not contained in the current art. 4).

vi) For whatever is not provided in this regulation, the Commission shall be governed by the rules of juridical regime and by the Administration of the Autonomous Community, Law of Cantabria 6/2002, of the 10 th of December, and by the Law 30/1992, of the 26 th of November, of Juridical Regime of Public Administrations and the Common Administrative Procedure (LRJAP and PAC, in their Spanish acronyms).

vii) Attendance at the organ’s sessions (art. 5), duly certified by its Secretary, shall determine the application of the corresponding compensation for attendance, in accordance with what is laid down in Decree 137/2004, of the 15 th of December.

viii) The Project Decree shall determine the repeal of however many previous provisions of equal or inferior rank is opposed to what is laid down in the same, and specifically the Decree 17/2008, of the 28 th of February, by which the Joint Commission of the Government of Cantabria and the Judicial Secretariat posted in this Autonomous Community was created.

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ix) Finally, the final Provision of the Decree lays down its entrance into force as the same day as its publication in the Official Gazette of Cantabria.

IV GENERAL CONSIDERATIONS

By virtue of Royal Decree 817/2007, of the 22 nd of June, of transfer of functions and services of the Administration of the State to the Autonomous Community of Cantabria in the matter of the provision of personnel, material and economic means for the running of the Administration of Justice, it corresponds to this Autonomous Community , as from the 1 st of January, 2008, to exercise the functions in the indicated matters under the terms established in the Royal Decree 249/1996, of the 16 th of February, which approved the Organic Regulation of the Forces of Officials, Auxiliaries and Agents at the service of the Administration of Justice and the Royal Decree 296/1996, of the 23 rd of February which approved the Organic Regulation of the Fellowship of Medical Forensic Scientists, all of them modified by the Royal Decree 1451/2005, of the 7 th of December, approving the regulation of Entry, Provision of Work Posts and Professional Promotion of Civil Service Staff at the Service of the Administration of Justice.

Together with this normative framework that determines the authorization of the competence of the Autonomous Community in the mentioned aspects of the Administration of Justice rooted in its territory, art. 438.3 of the Organic Law 6/1985, of the Judiciary, introduced by Organic Law 19/2003, amending the previous one, provides that “[the]

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Ministry of Justice and the Autonomous Communities in their respective territories shall be competent to design, create and organise the common procedural services, with functions of registration and delivery, acts of communication, legal aid, execution of judicial resolutions and voluntary jurisdiction ”, on their part, “the Boards of Governors and the Judge’s Associations may request the Ministry and the Autonomous Communities to create common services, in accordance with specific needs”, also being able to “create common procedural services which assume the organization of the procedure or other functions different from those laid down in this number, in which case it will be necessary to have a favourable report from the General Council of the Judiciary”.

More specifically, art. 452.3 establishes that the judicial secretaries “shall collaborate with the Autonomous Communities with assumed competence for the effectiveness of the functions which these have in the matter of personnel and material means, complying with the instructions which they receive to that effect from their hierarchical superiors.” For the purpose of better coordination, the precept goes on to say, “Joint Commissions of Judicial Secretaries and representatives of the Autonomous Communities with assumed competence may be constituted, in their respective territorial areas.”

Consequently, the Decree now being reported on is announced in the exercise of the explained authorization of competence envisaged in the LOPJ, and made possible by the Decree 817/2007, of the 22 nd of June, of transfer of competence from the State Administration to the Cantabrian Autonomous Community in the matter of Justice Administration, respecting, therefore, the constitutional, state, and statutory prescriptions of distribution of competence, and regulating

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questions included in the scope of the set available funds of the Autonomous Community.

From a different, purely formal perspective, it should be pointed out that it would have been appropriate that the submitted text of the projected regulation had been accompanied by the preceptive documentation, which ought, at least, to include the Justification Report about the normative framework and the opportuneness of the proposal, with the aim of furnishing this constitutional Organ with an adequate knowledge of the criteria which have prevailed in the drawing up of the project submitted to report.

This documentation is doubly relevant in this case, since, on the one hand, this Decree Project serves to substitute the regulation contained in the previous one, which the Autonomous Government announced in 2008, regarding the same matters, and which, however, was not submitted to report by this Council, and on the other hand, the reform now being presented finds specific justification in that, as mentioned in the Explanation of Reasons, “after the first year of exercising the competence, the possibility has been observed of improving the running of the said organ (that is, the Joint Commission) as well as the possibility of enriching its functioning with specific sectors worthy of a very special protection, as considered by the Government of Cantabria, as are the women who are victims of violence against women”, with the Gender Impact Report therefore acquiring notable importance in this area, as is also the evaluation of the activity, and the practice and efficacy of the Commission during this first year of running experience.

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CONSIDERATIONS ON THE CONTENT OF THE PROJECT

1. The Joint Commission of the Government of Cantabria and the Judicial Secretariats of Cantabria, organ of a consultative nature created in the present Project (although, the truth is that it modifies or reorganizes, as is stated in the title of the Decree Project, since the organ was created in 2008 by Decree 17/2008, the repeal of which is provided in the text under report), reckons with similar antecedents in other Autonomous Communities, and about which this Council has already expressed an opinion.

In the case of the Basque Country, Decree 123/1997, of the 27 th of May, created the organ of collaboration between the Basque Government and the Judicial Secretariat posted in the Basque Country; subsequently, and based on the provisions contemplated in Organic Law 19/2003, modifying the Organic Law of the Judiciary, the Decree 426/2005, of the 27 th of December was approved, modifying the previous one. In accordance with both regulations, the named Organ of collaboration between the Basque Government and the Judicial Secretariat posted in the Basque Country was created in this Autonomous Community, with the character of a consultative organ attached to the Department of Justice. The organ of collaboration is attributed with functions of reporting on projects concerning the design, dimension and organization of the judicial office, personnel statute or “Basquefication ” of the Administration of Justice; knowledge of activities in the matter of personnel, economic and material means, and proposals of contents regarding training programs directed at Judicial Secretaries. The organ is made up of representatives of the

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Department of Justice of the Autonomous Community, by the Secretary of the Board of Governors of the High Court of Justice of the Basque Country, the coordinating Secretaries of each Historical Territory, and a representative of each one of the associations of the collective of Judicial Secretaries, if, and only if, they fulfil the requirement of being posted in the Basque Country.

For its part, the Valencian Community, by Order of the 11 th of February, 1998, created the organ of collaboration called the Advisory Commission of the Judicial Secretariat, which was also attributed with functions of reporting, knowledge and proposals regarding actions deemed appropriate for the better development of the activities of the public service of justice. In its composition are integrated, as well as the representatives of the Undersecretary of Justice, the Secretary of the Board of Governors of the TSJ [High Court of Justice], three judicial secretaries posted in the province of Valencia; two posted in the province of Alicante and one judicial secretary posted in the province of Castellón, elected by the secretaries of each province.

By Decree 278/2000, of the 31 st of July, the Commission of Judicial Secretaries of Catalonia was created in the Autonomous Community of Catalonia, integrated by a General Commission and a Territorial Commission for each one of the demarcations of Girona, Lerida and Tarragona. These Commissions were conceived as organs of a consultative nature, attached to the Department of Justice of the Autonomous Government of Catalonia, with functions of prior reporting on questions in the matter of personnel and of economic and material means at the service of the Administration of Justice, as well as knowledge of the activities that are developed in this matter by the Department of Justice, and proposals for action.

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This Decree, which was published on the 28 th of August, 2000, in the Official Gazette of the Autonomous Government of Catalonia, without having received the reports from either the Ministry of Justice or the General Council of the Judiciary, was the object of a positive conflict of competence lodged by the Government of the Nation before the Constitutional Court, due to considering that determined precepts of the regulation violated the exclusive competence of the State in the matter of the Administration of Justice (ex article 149.1.5 th EC). The Government, at the moment of the impetration of the constitutional procedure of conflict of competence, urged the suspension of the validity of the impugned precepts, which was granted, first of all, by the Constitutional Court, with the lifting of the said suspension by Order of the 27 th of March, 2001. After that, the Government agreed to abandon the conflict, and the Constitutional Court, by Order of the 3 rd of November, 2004, declared the process to be extinguished, without pronouncing a resolution on the question of law.

However, the mentioned Decree was repealed and substituted by the current Decree 121/2008, of the 25 th of June, which constitutes the Joint Commission of Judicial Secretaries and representatives of the Department of Justice of Catalonia, which, in its phase as Project, was object of the Report approved by the Plenary of this General Council of the Judiciary, in its meeting of the 12 th of March, 2008.

Without affecting its favourable consideration, in the report then issued by the General Council of the Judiciary, it was declared that “(…) it has to be adequately guaranteed that the functions entrusted to the Joint Commission can solely refer to aspects relating to the material and personnel means at the service of the Administration of Justice, in

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which the competence of the Autonomous Community is indisputable, and are circumscribed within its territorial area and installed in the executive scope, without being capable of affecting the legislative competence of the State”. In such a way that “this autonomous Organ may not interfere in or interrupt the exercise of the functions which constitute the nucleus of activity of the Judicial Secretaries (…) which are defined in the Organic Law of the Judiciary in articles 4 to 7 of the Organic Regulation, and which are the functions relating to the exercise of public judicial trust, of documentation, impulsion and organization of procedure.” Therefore, “the Joint Commission created by the present Decree may, to summarize, extend its action exclusively to the scope of the management and organization of the economic and material means assigned to the judicial Offices and, therefore, to the functions of the Judicial Secretaries referred to in articles 8 and 9 of the Organic Regulation, but it may not suppose a perturbing incidence on the exercise of the substantial functions which, in procedural matters, corresponds to the Secretaries, or in their normal organic and functional dependence with respect to the State Administration.”

The report concluded by pointing out the appropriateness of “determining with greater precision (…), the content of the functions attributed to the Joint Commission.” These observations have been reiterated by this constitutional organ on the occasion of the Report on the Decree Project creating the Joint Commission of Coordination between the Government of Aragon and the Judicial Secretariat posted in that Autonomous Community (approved by the Plenary Session at their meeting on the 29 th of October, 2008), and which are equally valid at this moment.

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Finally, as has been mentioned, the most direct antecedent of the text now under report is constituted by Decree 17/2008, of the 28 th of February, of the Autonomous Community of Cantabria, creating the Joint Commission of the Government of Cantabria and the Judicial Secretariat posted in the Autonomous Community of Cantabria, currently in force, and the regulation of which, along general lines, is adjusted to what is laid down in the mentioned antecedents, attributing to this organ functions of reporting, proposals and knowledge, and contemplating a composition that integrates representatives of the Council with competence in the matter of justice, and by the Secretary of the Board of Governors of the High Court of Justice and two Judicial Secretaries posted in Cantabria, chosen by the Secretary of the Governing Body.

2. As expounded in previous sections, the Decree Project under report is laid down by virtue of the expressed legal authorization, contained in the actual Organic Law of the Judiciary, in the wording given to the same by Organic Law 19/2003, and specifically in article 452.3, which provides that “the Judicial Secretaries shall collaborate with the Autonomous Communities with assumed competence for the effectiveness of the functions that these have in the matter of personnel and material means, complying with the instructions to that effect that they receive from their hierarchical superiors. For better coordination they may constitute Joint Commissions of Judicial Secretaries and representatives of the Autonomous Communities with assumed competence, in their respective territorial areas.”

Along the same lines, article 9.b) of Royal Decree 1608/2005, of the 30 th of December, approving the Organic Regulation of the Body of Judicial Secretaries, establishes that the Judicial Secretaries “shall

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collaborate with the said Autonomous Communities (those which have received the transfer of personnel means at the service of the Administration of Justice) for the effectiveness of the functions that these have in the matter of the organization of personnel and material means, complying in the area of competence of the Judicial Secretaries with the instructions which, to that effect, they receive through their hierarchical superiors, drawn up by the Administrations with competence in this matter. For better coordination they may constitute Joint Commissions of Judicial Secretaries and representatives of the Autonomous Communities with assumed competence in their respective territorial areas, of which they form part, at least, the Coordinating Provincial Secretaries.”

The Judicial Secretaries, configured as a single Body, of national character, dependent on the Ministry of Justice, have, among their functions, according to the Organic Regulation, that of assuring the coordination with the Autonomous Communities which have received the transfers of personnel means at the service of the Administration of Justice, to facilitate the exercise of their competence, for the sake of achieving an adequate public service of Justice [art. 9. a)], as well as that of collaborating with such Autonomous Communities for the effectiveness of the functions that these have in the organization of personnel and material means [art. 9. b)].

In the case of Cantabria, competence in the matter of provision of means for running the Administration of Justice, in the terms envisaged in art. 455 LOPJ, were assumed by the Autonomous Community by Royal Decree 817/2007, of the 22 nd of June, of transfer of functions and services of the State Administration to the Autonomous Community of

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Cantabria, in the matter of the provision of personnel, material and economic means for the running of the Administration of Justice.

Article 454.2 of the Organic Law and article 8 of the Regulation specify the functions which correspond to the Secretaries as technical- procedural directors of the Judicial Office, and specifically determine that it corresponds to them “the organization, management, inspection and direction of personnel in technical procedural aspects, assuring in all cases the coordination with the governing bodies of the Judiciary and with the Autonomous Communities with transferred competence.” With this aim, they should organize the activity of the personnel and issue the instructions they deem pertinent in the exercise of this function, without affecting the competence which, in the matter of organization and management of personnel, corresponds to the Ministry of Justice or to the Autonomous Communities with received transfers.

In the light of the mentioned regulations, it can be affirmed that the Judicial Secretaries hold the direction of the Judicial Office and of its personnel, and, as such, it corresponds to them to maintain the channels of coordination and collaboration with the Autonomous Communities that are title-holders of the competence in the matter of organization and management of that personnel to the order of guaranteeing the fulfilment of the principles established in article 3.3 of the Organic Regulation: namely, “…that the Judicial Office acts in accordance with the criteria of efficacy, efficiency, agility, responsibility for the management, rationalization of the work, coordination and cooperation with the competent Administrations in the matter of justice, in such a way that the citizens obtain a nearby service of high quality,

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respecting the principles laid down in the Bill of Rights of Citizens before Justice”.

The Project under report pretends to regulate that collaboration between the Judicial Secretaries as responsible for the running of the Judicial Office and the Autonomous Administration, responsible for providing the means required for doing so, and achieving that by means of the creation of an organ of coordination, specifically envisaged in both the Organic Law and the Regulation, whose purpose is precisely that of facilitating the execution and application of the measures adopted by the autonomous Administration in the matter of personnel and material means for the Administration of Justice.

Regarding the content of the precepts of the regulation submitted to report, the Project being examined draws up a concise regulation, limited to establishing the composition and functions of the organ being created and some minimum rules of functioning, referring, for the rest, to what is provided in the Autonomous and State rules about juridical regime of public administration.

The envisaged regulation turns out, all in all, to be in accordance, as occurred with the previous, in force since 2008, with the established legal prescriptions to the effect, attributing to this organ functions of reporting, proposals and knowledge and displaying a composition integrated by representatives of the Ministry with competence in the matter of Justice, and by representatives of the Judicial Secretariat posted in the Autonomous Community, and fixed in the Secretary of the Board of Governors of the High Court of Justice and two Judicial Secretaries posted in Cantabria and chosen by the aforementioned.

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It should be highlighted that the principal and substantial objective of the reform is found in the special relevance given to matters regarding violence against women and the attention given to the victims of the same. This relevance is shown both in the area of matters which are reported on by this Joint Commission, and in its composition which is seen to be expanded with the inclusion of whoever is in charge of the General Council for Women, all of it included in the framework of the Law of Cantabria 1/2004, of the 1 st of April, Comprehensive for the Prevention of Violence against Women and the Protection of its Victims, the Preamble of which highlights the necessary intervention of the various social operators, and judicial areas, to eradicate gender violence as well as providing the victims with the legal and social guarantees which allow for modifying these circumstances.

3. Finally, in the interest of achieving an improved juridical technique in the drafting of the precepts, the wording of the group of articles should be reconsidered with the aim of offering a homogeneous and harmonious use of determined terms. Specifically, in the precept dedicated to the composition of the organ (art. 3), the use of the term “the title-holder” should be positively evaluated to designate those who represent both the Government of Cantabria and the Judicial Secretariat posted in this Autonomous Community.

However, in the same precept, in section b), on two occasions the term Judicial Secretaries is used, where it would be preferable to use the previously indicated Judicial Secretariat, or another equivalent term, more in accordance with a non-discriminatory use of language – which objective seems to have been pursued in the projected text.

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Continuing with questions of legislative technique, in art. 5, regarding compensation for attendance, it is provided that the attendance at the meetings of the organ will give rise to the mentioned compensation, when such attendance is “duly certified by its Secretary.” Then, as well as reiterating what has already been said regarding a non-discriminatory use of language, it should be specified that the certifying faculty is attributed to the person who holds the position of Secretary of the organ, who shall be, as provided in art. 3 a) of the Project “the person who holds the position of Premiership of Personnel Service and social assistance of the mentioned General Council of Justice.”

Last of all, it should be pointed out that the second paragraph of the Preamble contains an error: when it mentions art. 435.3 LOPJ, relating to the competence of the autonomous Government to determine the design, dimension and organization of the judicial office, the text should refer to art. 438.3 LOPJ.

That is all that has to be reported to the General Council of the Judiciary.

And so that this may be officially recorded, I issue and sign the present document in Madrid, on the thirtieth of April of the year two thousand and nine.